The battle over the wording of CA prop 14 -- sometimes called the top two or open primary initiative -- likely ended yesterday with a ruling by a California Court of Appeals upholding the lower court's refusal to alter the language that will appear on the ballot to describe the measure CA voters will vote on June 8. So concluded a week of intrigue in which partisans attempted to derail the initiative through a backdoor legal maneuver.
Prop 14, if passed, would institute a form of open primary where all voters, whether affiliated with a party or not, vote in an all-inclusive first round in which every candidate is listed on the ballot with their party preference next to their name. The top two vote getters will go on to the general election which is also open to every voter.
An important issue posed by the litigation and one likely to play back into the overall fight, is whether or not parties have a "right to be on the general election ballot." Opponents of Prop 14 tried unsuccessfully to get the court to rule that the ballot summary must state that Prop 14 will eliminate that right. However, there is no such right. This issue was resolved when the U.S. Supreme Court upheld the State of Washington's top two initiative on which Prop 14 is modeled. Wash. State Grange v. Wash. State Republican Party 128 S.Ct. 1184 (2008).
The assertion of such a right by the parties raises a fundamental question about the nature of our democracy. Does it rest on the rights of voters or on the rights of parties? On one level the answer is simple. The Constitution makes no mention of political parties. The Bill of Rights speaks of the "rights of the people," not of the parties. After all, it is the people who organize the parties, so how could the rights of the parties they organize trump theirs?
In 2000 the parties went to the Supreme Court to prevent the voters of California from instituting another form of open primary. Democratic Party, et al. v. Jones, 530 U.S. 567 (2000). Obviously, they have not given up the fight. With the preliminary legal hurdles passed, the State's 3.4 million independents can now join with other voters in asserting their right to determine how the elections by which they select their government are organized. Wasn't it Abraham Lincoln who spoke of "government of the people, by the people, for the people?"
Harry Kresky, a New York City attorney, is counsel to IndependentVoting.org. He currently represents independent voters in a precedent-setting case defending open primaries in Idaho.
Follow Harry Kresky on Twitter: www.twitter.com/harrykresky
I doubt that Mr. Kresky, who lives in New York, even bothered to check the California Constitution before he wrote his post.
“The flaw in this argument is that, unlike the California primary [a party primary that was struck down in 2000], the I-872 primary does not, by its terms, choose parties' nominees. The essence of nomination--the choice of a party representative--does not occur under I-872. The law never refers to the candidates as nominees of any party, nor does it treat them as such.”
Wash. State Grange v. Wash. State Republican Party 128 S.Ct. 1184, 1192 (2008). The Supreme Court went on to state, “The First Amendment does not give political parties a right to have their nominees designated as such on the ballot.” Id., at 1193.